Lawsuit seeks to reveal source of Texas execution drug

The Dallas Morning News
From Wire Reports
Originally published March 26, 2014

HOUSTON — Attorneys for two Texas inmates facing execution next month with a new batch of pentobarbital obtained by the Texas Department of Criminal Justice filed a lawsuit Wednesday demanding the prison agency disclose the identity of the new supplier.

The petition filed in state court in Austin also sought an emergency order requiring state authorities to identify when the drug was obtained and any results of tests on its potency and purity.

The attorneys represent convicted killers Tommy Lynn Sells, set to die April 3, and Ramiro Hernandez, scheduled for April 9.

The current supply of pentobarbital used for lethal injections in Texas expires April 1. Prison officials said last week they have a new supply but cited security reasons for declining to name the provider.

The state attorney general’s office previously has said the information should be public and is waiting for arguments from the agency on why the policy should be changed.

“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” Texas Department of Criminal Justice spokesman Jason Clark said last week.

Told of the lawsuit Wednesday, Clark said the agency “doesn’t comment on pending litigation.”

Lauren Bean, a spokeswoman for Attorney General Greg Abbott, said his office would represent the prison agency at a hearing on the suit set for Thursday before State District Judge Tim Sulak. She had no other comment on the filing.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.

The inmates’ lawyers said their filing compels the Texas corrections department to comply with the state’s Public Information Act, adding that the deadline for the agency to submit its request for an attorney general’s opinion regarding the new secrecy is April 1.

“Even if (prison officials) expedited the filing of that request — which they have not said they will do — the attorney general will not be able to write an opinion before Mr. Sells’ April 3rd scheduled execution,” attorneys Maurie Levin, Naomi Terr and Hilary Sheard wrote.

Sells was condemned for slashing the throats of two girls at a home near Del Rio in South Texas’ Val Verde County in 1999. A 13-year-old, Kaylene Harris, died. Her 10-year-old friend, Krystal Surles, survived. He’s also been linked to more than a dozen other slayings and has claimed responsibility for dozens more.

Hernandez, a Mexican national, is condemned for the beating death of Glen Lich, owner of a ranch near Kerrville where Hernandez worked.

“Time is truly of the essence,” the lawyers said in the suit. “Without information about where the drugs come from, and the purity, potency and integrity of those drugs, neither Mr. Hernandez Llanas nor Mr. Sells can evaluate the risk that their executions will subject them to cruel and unusual pain in violation of the Eighth Amendment.”

They also contended the legal steps and emergency relief was needed to address “truly ‘life and death issues’ with such potentially drastic consequences.”

Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. An inmate set to die Thursday would be using the sedative from that supply.

Earlier Wednesday, an Oklahoma judge ruled that state’s execution law unconstitutional because its privacy provision is so strict that it that prevents inmates from finding out the source of drugs used in executions, even through the courts. Under state law, no one is allowed to disclose the source of drugs used in a lethal injection. The state plans to appeal the ruling.

Some death penalty states have sought to buy or trade drugs with other states, and some have turned to compounding pharmacies that face less scrutiny from federal regulators. The soon-expiring Texas supply came from a compounding pharmacy.

The lawsuit cited reports of executions in Oklahoma and South Dakota where executions using compounded pentobarbital “appeared to have had serious problems.” But Texas, where inmate Anthony Doyle was scheduled on Thursday evening to be the seventh condemned killer in the state to be injected with similarly manufactured pentobarbital, has had no apparent abnormalities.

Texas prison officials are hoping to join others, like Oklahoma, that have made the process secret.

“We’re not in conflict with the law,” Clark said last week. “We plan to seek an AG’s opinion, which is appropriate in a situation like this, and the AG’s office will determine whether it’s releasable.”

Michael Graczyk, The Associated Press